An assignation being granted with abfolute warrandice, in case payment should not be obtained, and the assignee having done no diligence, the Lords found he had no claim against the granter of the assignation.
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John Melvill being debtor to umquhile Henry Stuart, he gives him an assignation to a bond due by Patrick Scot, second son to Langshaw; which assignation bears warrandice at all hands, and that the assignee shall recover payment thereby. Patrick Scot being dead, Henry Stuart as heir to his father, pursues John Melvill for payment of the sum assigned, because he had not recovered payment from Patrick Scot. The defender alleged, that by this assignation and clause of warrandice, there was necessarily imported, that the assignee should have done diligence, it bearing expressly, that he should recover payment by the assignation: Ita est, Though the debtor, Patrick Scot, lived six years after the assignation, the assignee did no diligence against him; and it cannot be thought, that if the assignee had forborne for 39 years to pursue upon his assignation, that he could have returned upon his cedent, seeing the assignation was not granted in corroboration of any debt, but in satisfaction of a prior debt. The pursuer answered, that this clause must import the solvency of the debtor the time of the assignation, and therefore the cedent must prove at least that he was then solvent, and had a visible estate, which might be affected. It was replied, That solvency is presumed, unless notour irresponsality were proven, for after so long time the cedent was neither obliged, nor took notice to instruct the condition of his debtor, which should have appeared by the assignee's diligence, whereby if he had incarcerate him, it would have discovered his condition.
The Lords found, that this clause imported the solvency of the debtor, but that the same was presumed, unless it were proven that he was a notour Bankrupt, or that the assignee using diligence, did not recover; and if responsality be alleged, allows the cedent to condescend upon any visible estate he had to affect the same.
Fol. Dic. v. 1. p. 238. Stair, v. 2. p. 611.*** Fountainhall reports the same case.
A recourse upon the absolute warrandice of an assignation, in case payment were not obtained, The Lords found this relevant to assoilzie, that Harry did no diligence to recover payment of this debt; for they thought the clause implied a necessity to do diligence, unless the executors would prove the debtor was bankrupt and insolvent the time of granting the assignation; and found this relevant to the defender, that he had then a visible estate. Nota, If it had only been absolute warrandice, without these words, ‘in case payment be not obtained,’ there had been no recourse, though the debtor had been insolvent.
